Cali v Savino

Cali v Savino 2015 NY Slip Op 02843 Decided on April 2, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 2, 2015
Mazzarelli, J.P., Sweeny, DeGrasse, Feinman, Gische, JJ.
14693 304456/13

[*1] Albert Cali, Jr., Plaintiff-Appellant,

v

Joseph J. Savino, et al., Defendants-Respondents.

Brian M. Levy, New York, for appellant.

Daniel Szalkiewicz & Associates, PC, New York (Daniel S. Szalkiewicz of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 7, 2014, which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.

The fiduciary duty claims here sound in fraud, and thus the 2 year discovery rule of CPLR 213(8) applies to this action (see Kaufman at 122). Under the circumstances of this case, and at this pleading stage, it was error for the IAS court to conclude

as a matter of law that the case was barred by the statute of limitations.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 2, 2015

CLERK